We agree with the Special Term in its holding that the evidence was sufficient to establish prima facie that defendant was the beneficial owner of the stock standing in the name of his wife, and that, in the absence of explanar, tion, judgment was properly given against him.
We fail to find any evidence in the record to support that portion of Finding of Fact No. 98 contained in the decision of Special Term, to the effect that the dividends were “ at the request of Mrs. Rose Leff, and on her written order,” deposited in the account of Max Leff. Accordingly, said finding should be reversed and a new Finding of Fact No. 98 made, to read as follows: That thereafter three separate dividends were declared by the Bank of United States upon the said stock standing in the name of Mrs. Rose Leff, which said dividends were deposited in an account of Max Leff in the trust department of the Chatham Phoenix National Bank & Trust Co., called “ special ” account.
The judgment should be affirmed, with costs.
Present — Martin, P. J., O’Malley, Glennon, Dore and Callahan, JJ.
Judgment unanimously affirmed, with costs.